THE ADVISORY SOCIETY OF GANESH TEMPLE, NAGPUR V. CIT(exemption) , Pune

ITA 370/NAG/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 0064 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 17-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP HEDAOO
• Assessee Lawyers: MAHAVEER ATAL
• Keywords: Charitable institution; Competent authority; Set aside
• Section: 80G; 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND BEFORE SHRI O.P. KANT, ACCOUNTANT MEMBER ITA No. 370/NAG/2019 The Advisory Society of Genesh Temple, Sitabuldhi Hill Road, Near Railway Station, Nagpur - 440012 PAN: AAATT9897N Vs. CIT (Exemption), 3 rd Floor, Room No. 322, PMT, Building, Shankarshet Road, Swargate, Pune - 411037 (Appellant) (Respondent) Assessee by : Shri Mahaveer Atal (CA) Revenue by : Shri Pradeep Hedaoo (DR) Date of Hearing : 28/10/2021 Date of Pronouncement: 18/01/2022 O R D E R PER OM PRAKASH KANT, AM This appeal by the assessee is preferred against the order dated 09/09/2019 passed by the Ld. Commissioner of Income-tax (Exemption)- Pune [in short the Ld. CIT(E)] rejecting the application of the assessee for registration under section 80G of the Income-tax Act, 1961 (in short the ‘Act’). 2. The grounds raised by the assessee are reproduced as under: 1. “Whether the learned CIT-Exemption is justified in not granting registration to the appellant trust under section 80G? 2. The appellant craves leave to add or alter any other ground that may be taken at the time of hearing.” 2 ITA No. 370/NAG/2019 3. The assessee filed a paper book containing pages 1 to 38, which includes trust deed and financial statements for assessment year 2018-19 and 2019- 20. 4. We have heard rival submission of the parties on the grounds raised by the assessee. 5. Briefly stated facts of the case are that the assessee trust is registered under section 12A of the Act with effect from 01/04/2003 vide registration No. 72/03 issued by the Competent Authority. After registration of the trust, the assessee applied for registration under section 80G of the Act for accepting donations from the public. Said application of the assessee has been rejected by the Ld. CIT(E) mainly on the ground that the assessee trust do not satisfy the conditions laid down in section 80G(5)(i) to 80G(5)(v) of the Act. The relevant finding of the learned CIT(E ) is reproduced as under: “6. In view of facts of the case discussed above, it is evident that the trust is religious trust, managing a very old temple of “Lord Ganesha” and performing Pooja Ganpati as per Hindu religion rituals, as per objects of the trust. Further, the trust has incurred expenses on religious objects of the trust more than 5% of total expenses. Further, as per registration u/s 12A vide No. F.No. CIT-1(Nagpur)/12A/T24/2004 dated12.10.2004 the trust is registered as “Religious trust”. Therefore, the trust do not satisfies the conditions laid down in section 80G(5)(i) to 80G(5)(v) of the IT Act for registration of trust u/s 80G.” 6. Before us, the learned counsel of the assessee submitted that object of the trust are partly charitable in nature and not wholly religious and therefore, the assessee is entitled to registration under section 80G of the Act. The 3 ITA No. 370/NAG/2019 objects of the assessee trust mentioned in the trust deed are reproduced as under : “Object of the Society - 1. To manage the Temple of Ganpati and advise Executive Body in the matter performing the Puja of Ganpati according to Hindu Religious rites. 2. There should not be any illegal action from the visitors to the Temple. 3. To add and to check the facilities to the Temple given by public and government i.e. water-tap and Electricity 4. To keep the Temple open and not to do residential home. 5. Not to open trust any building without the sanction from Authorities near the Temple.” 7. In support of the claim, the learned counsel of the assessee relied on the decision dated 11/10/2012 of the coordinate bench in the case of Shiv Mandir Devsthan Panch Committee Sansthan Nagpur in ITA No. 223/Nag/2009, wherein it is held as under: “13. Explanation 3 to section 80G(v) states that “in this section, "Charitable purpose” does not include any purpose the whole or substantially the whole of which is of a religious nature. This explanation takes note of the fact that an institution or fund shall be for a charitable purpose and may have a number of objects. If any one of these objects is wholly or substantially wholly of a religious nature, the Institution or Funds falls outside the scope of section 80G and the donation to it will not make the donor entitled for the deduction u/s. 80G. The objects as per Explanation 3 must be wholly or substantially whole of which must be of religious nature. The assessee has submitted all the evidence including the objects and how the expenditure has been incurred by it. The onus, in our opinion, gets shifted on the Revenue to prove that the assessee-trust is wholly or substantially for the religious purpose. There is no allegation on the part of the revenue that the whole or substantially whole of the object 4 ITA No. 370/NAG/2019 of the trust is to propagate or advance support to a particular sect. We may observe that Hinduism is a way of life of a civilized society. It as such is not a religion. In this regard, we rely on the case of T T Kuppuswamy Chettiar Vs. State of Tamil Nadu (1987) 100 LW 1031 in which it was held “ The word “Hindu” has not been defined in any of the texts nor in judgment made law. The word was given by British administrators to inhabitants of India, who were not Christians, Muslims, Parsis or Jews. The alleged Hindu religion consists of four castes Brahmins, kshatriyas, vaishyas and sudras belonging ultimately to two schools of law, mitaksharas and dayabhaga. There is, however, no religion by the name „Hindu‟. It only shows that so called Hindu religion has been called for convenience.” CIT must be aware of that the Hindu consists of a number of communities having the different gods who are being worshipped in a different manner, different rituals, different ethical codes. Even the worship of god is not essential for a person who has adopted Hinduism way of life. Thus, Hinduism holds within its fold men of divergent views and traditions who have very little in common except a vague faith in what may be called the fundamentals of the Hinduism. The word „community‟ means a society of people living in the same place, under the same laws and regulations and who have common rights and privileges. This may apply to Christianity or moslem but not to Hinduism. Therefore, it cannot be said that Hindu is a separate community or a separate religion. Technically Hindu is neither a religion nor a community. Therefore, expenses incurred for worshipping of Lord Shiva, Hanuman, Goddess Durga and for maintenance of temple cannot be regarded to be for religious purpose. Under these facts and circumstances, we are of the view that the CIT is not correct in law in not allowing the approval to the assessee trust u/s. 80G of the Act. We accordingly, set aside the order of the CIT and direct the CIT to grant approval to the assessee-trust u/s. 80G(5)(vi) of the Act” 5 ITA No. 370/NAG/2019 . 8. The learned counsel contested the expenses incurred by the assessee are identical to the expenses incurred by above trust and therefore the assessee is also entitled for registration under section 80G of the Act. We find that the Tribunal (supra) has analysed the activities of the above trust and the activity of worshipping god has been held to be not wholly for religious purposes, and accordingly allowed registration under section 80G of the Act. 9. Respectfully following the above finding of the Tribunal, we set aside the finding of the Ld, CIT(E ) in instant case and restore the matter back to him for deciding afresh in accordance with law. The grounds raised by the assessee are accordingly allowed for statistical purposes. 10. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced under Rule 34(4) of the Income Tax (Appellate Tribunal) Rules, 1963 by placing the details on the notice board. Sd/- Sd/- (SANDEEP GOSAIN) JUDICIAL MEMBER (OM PRAKASH KANT) ACCOUNTANT MEMBER Nagpur; Dated: 18/01/2022 AK, PS 6 ITA No. 370/NAG/2019 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A) 4. CIT 5. DR, ITAT, Nagpur 6. Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Nagpur